Sweeney; Secretary Department of Employment and Workplace Relations and
[2007] AATA 1252
•24 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1252
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/1525
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
JULIE SWEENEY
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date24 April 2007
PlaceMoree (Decision Published in Sydney)
Decision The Tribunal affirms the decision of the SSAT and decisions of the Secretary regarding the debts of FTB and Carer Allowance.
The Tribunal affirms the decision of the SSAT and the Secretary to waive $2,444.54 of the PPS debt.
The Tribunal sets aside the decision of the SSAT to waive the remaining part of the PPS debt of $3837.72 for the period 18 November 2004 to 25 January 2005 and reinstates the decision of the Secretary to recover that amount.
...................[sgd]...........................
Ms G Ettinger
Senior Member
CATCHWORDS –
Parenting Payment debt – whether it should be recovered – whether child in care of Ms Sweeney and/or her parents – whether write-off applies – whether special circumstances –application of notional entitlement of another income support payment cannot be a special circumstance – no special circumstances.
Social Security Act 1991 - ss 1236(1), 1237(1) and 1237AAD
Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Schulze and Secretary Department of Family and Community Services [2004] AATA 705 Secretary, Department of Family and Community Services and Varhegyi [2005] AATA 635REASONS FOR DECISION
24 April 2007 Ms G Ettinger, Senior Member BACKGROUND
1. Ms Julie Sweeney is a person who lives with psychiatric illness. She has been diagnosed with schizophrenia, and told me that she has been admitted into various psychiatric wards since 2001. She has had a difficult life, and has two children, a son, J, now aged approximately 19 years, and a daughter, B, now aged approximately 12. She told us in her oral evidence that she has a premature baby born 12 November 2006, which is in hospital in Sydney. She has lived with her parents from time to time over the years, has been in receipt of various income support payments, and has worked in paid employment from time to time.
2. Ms Sweeney is adamant that she has always had the care and control of her children, in particular her daughter, B. She maintains this, notwithstanding the child B lives with her maternal grandparents, and was the FTB child of Mr Sweeney the child’s maternal grandfather, from 1 July 2004 to 1 February 2005. Further, a family law order was made on 7 February 2005 which confers on Mr Sweeney, the maternal grandfather, the legal responsibility for making decisions about the long term care, welfare and development of B.
3. Ms Sweeney has lived with her parents at two different addresses in Moree, has resided in a caravan on the land of one house, and has lived away from them at various times. She moved away to a caravan park in late November 2004, and she has also had several periods when she has been hospitalised in psychiatric units.
4. On 10 August 2004, Ms Sweeney filled in a Centrelink form (T13/75), stating that her children currently lived with her, and that her daughter would live with her permanently.
5. She stated in evidence before me that she understands the concepts of care and control, and said “I am the sole carer of my children ... I own them … I reared my kids…” She insisted nothing had changed over the years, she always had the care of her children, and for periods when she was at work, or in hospital, her mother acted as the carer/babysitter for the children.
6. Ms Sweeney has received various income support payments over the years, including Newstart, Family Tax Benefit (FTB), Parenting Payment single (PPS), and Carer Allowance. Most recently, Ms Sweeney appealed debts which the Secretary Department of Employment and Workplace Relations (the Secretary), raised against her. The only debt being contested in the hearing before me was an amount of $3,837.72 of PPS debt. The actual original PPS debt had been $6,282.26. The Secretary waived $2,444.54 relating to the period 7 September 2004 to 17 November 2004 due to administrative error of the Commonwealth. The discretion to waive the remaining amount of $3,837.72 of PPS debt was exercised in Ms Sweeney’s favour by the Social Security Appeals Tribunal (SSAT) in May 2006 (T2).
7. The Secretary appealed the SSAT decision to this Tribunal. Mr B Dube represented the Secretary at the hearing held in Moree, and Mr S Hodges represented Ms Sweeney.
8. I decided that the decision of the SSAT should be set aside and the decision of the Secretary restored. The $3,837.72 of PPS debt must be recovered. My reasons follow.
ISSUE TO BE DECIDED
9. For the sake of completeness I note from the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents), that the SSAT made two decisions on 29 May 2006.
10. In one decision the SSAT, in affirming the decision of the delegate of the Secretary, held that the child B was not the FTB child of her mother, Julie Sweeney, in the period 1 July 2004 to 1 February 2005, but rather that she was the FTB child of her maternal grandfather, Mr John Sweeney. The SSAT, after hearing both Ms Sweeney and Mr John Sweeney, decided that, on balance, to the extent of any inconsistency in the evidence of Ms Sweeney and Mr Sweeney, Mr Sweeney’s evidence was more credible and to be preferred.
11. In another decision made on the same day, the SSAT decided to affirm the decisions of the delegate of the Secretary in regard to a debt raised against Ms Sweeney for Carer Allowance, and FTB. There was no appeal before this Tribunal with regard to those, and I affirmed the decisions of the Secretary and the SSAT in relation to the Carer Allowance and FTB debts without considering further evidence about them.
12. The Secretary has appealed against the decision of the SSAT to waive the remaining portion of the PPS debt of $3,837.72 relating to the period 18 November 2004 to 25 January 2005. The debt had originally been $6,282.26 for the period 7 September 2004 to 25 January 2005, and $2,444.54 relating to the period 7 September 2004 to 17 November 2004 had been waived by Centrelink, leaving a debt of $3,837.72 relating to the period 18 November 2004 to 25 January 2005. There was no disagreement between the parties regarding the waiver of the PPS debt as agreed by Centrelink, and I have accepted that.
13. Accordingly, the only issue I have to decide is whether it is the correct or preferable decision to exercise the discretion to waive the PPS debt of $3,837.72 as raised by the Secretary.
14. In so doing, I have to first decide whether Ms Sweeney knowingly made a false statement or representation to Centrelink regarding the care of her children, (noting from the evidence that Ms Sweeney’s son left her care at the end of 2002). If I am satisfied Ms Sweeney did not make a false statement or representation, then I may consider whether special circumstances exist pursuant to section 1237AAD of the Act in order to exercise the discretion to waive the debt.
LEGISLATIVE CONTEXT
15. The relevant legislation is the Social Security Act 1991 (the Act). Relevant sections are the following, sections 1237A(1), 1236(1) and 1237AAD.
16. I have noted above that the Secretary waived certain debts Ms Sweeney had been found to have incurred due to administrative error.
“- SECT 1237A
Waiver of debt arising from errorAdministrative error
1237A(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).”
17. Section 1236 of the Act deals with write off which I find does not apply in the matter I have to decide.
“- SECT 1236
Secretary may write off debt1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.”
18. Section 1237AAD deals with waiver of Ms Sweeney’s debt if special circumstances can be found. But first I would have to find that the PPS debt did not result wholly or partly from Ms Sweeney or another person knowingly making a false statement or a false representation.
DID MS SWEENEY INCUR A PPS DEBT
19. The documents before me indicate that Ms Sweeney reapplied for Parenting Payment Single (PPS), on 7 August 2002 (following a period where it had been cancelled). I am mindful that to qualify for PPS Ms Sweeney must have had at least one Parenting Payment child as defined in sections 500D & 5(2) – (9) of the Act in her care. A PP child of a person I a child who has not turned sixteen and is a dependent child of the person. The SSAT held that it did not find the child B to be in Ms Sweeney’s care between 1 July 2004 and 25 January 2005, and that not having a PP child in that period, Ms Sweeney was accordingly not qualified for PPS.
20. Ms Sweeney indicated that she was living in the home of her parents, and had, always had the care of her children. While Ms Sweeney was receiving PPS she received the normal correspondence from Centrelink reminding her of her responsibility to inform Centrelink of any changes in her circumstances. In her oral evidence Ms Sweeney said that she understood she had to do that, and that she read the letters she received.
21. On 16 February 2005, Centrelink decided to raise and recover a PPS debt of $6,282.26 (pursuant to section 1223(1) of the Act), for the period 1 July 2004 to 25 January 2005, and a carer allowance debt which, as noted above, is not being reviewed here. Ms Sweeney applied for review of the PPS debt, and the Authorised Review Officer varied the decision. In fact the history of the decision making in this case indicates there was administrative error made on several occasions, and that in recognition of certain errors, various debts, having been raised, were reduced, written off, or waived (section 1237A of the Act).
22. In relation to the present matter, Centrelink cancelled the PPS because it held that the child B was not in Ms Sweeney’s care from 1 July 2004 to 25 January 2005, but then waived $2,444.54 of the debt for the period 7 September 2004 to 17 November 2004 on the basis that Ms Sweeney received the payments in good faith in that period, so that only $3,837.72 for the period 18 November 2004 to 25 January 2005 remained.
23. When Ms Sweeney appealed to the SSAT, that Tribunal found that the child B was not an FTB child of Ms Sweeney from 1 July 2004 to 1 February 2005, but that she was the FTB child of Mr John Sweeney, the child’s maternal grandfather.
24. There was no oral or written medical evidence before me, although Ms Sweeney told me at the hearing that she could obtain a medical report in the next few days. She gave evidence of her numerous hospitalisations for psychiatric illness, including schizophrenia, induced she said, by the taking of illegal drugs. She described hearing voices, and discussed her taking of prescribed medication which she said she took when she felt she had to, when “the voices” became too intrusive. Her legal representative, Mr Hodges submitted the taking of medication was sporadic.
25. Ms Sweeney also told me at the hearing that she was doing well in relation to the taking of illegal drugs, and had been drug free for some twelve months. She has recently had an appointment with a specialist, apparently in the field of drugs and alcohol, and was intending to follow up with another appointment in a couple of weeks.
26. There was no medical evidence before me, but I noted from Ms Sweeney’s evidence that hospitalisations in psychiatric wards included:
· Four days in Toowoomba in May 2001 – she said that this was the first time she was hearing voices;
· Two weeks in Toowoomba in November 2001;
· Approximately five weeks in April 2003, or which Ms Sweeney said four weeks were for recovery after an assault by her father at their home – who was a on a community based order from 7 January 2005 to 7 February 2005;
· Four weeks in October 2003 when Ms Sweeney said she was a voluntary admission after having relationship problems;
· Four weeks from 21 November 2003;
· 26 December 2004 to 7 January 2005.
27. Mr Dube did not dispute on behalf of the Applicant Secretary, that Ms Sweeney suffers psychiatric illness. I was satisfied even in the absence of medical evidence, but in consideration of Ms Sweeney’s evidence and her many hospital admissions to psychiatric wards, to accept that Ms Sweeney suffers psychiatric illness, and that this has necessitated her being away from home for various periods.
28. Ms Sweeney also gave evidence of periods during which she has undertaken paid work, including or from January 2002 to September or October 2002 when she worked as a roller operator doing road building, and which she ultimately ceased because of her schizophrenia. Ms Sweeney said that her father was working on the same road gang, and she drove to and from work with him. She said she did not work in paid employment again until 2005, when she did cotton picking in connection with the harvest from 7 February 2005 to 8 October 2005. She said that she had planned to work in the harvest season again in 2006, but could not because she was pregnant.
29. As to the PPS debt, Mr Hodges submitted that Ms Sweeney had moved away from her parents’ residence into the Mehi River Van Park, not on 18 November 2004 as alleged by the Secretary, but instead that the first rent receipt from the caravan park indicated she had moved from home, and first paid her rent on 25 November 2004. Ms Sweeney gave evidence that she had gone along to Centrelink with that first and only receipt, accompanied by her daughter, in order to obtain rental assistance. She said that her daughter (who was living with her grandfather), could visit her there at the caravan park.
30. Mr Hodges submitted that the attendance at Centrelink in itself was a form of notification of change of address, although Ms Sweeney’s circumstances in relation to her child had not changed, and she still had the care and control of her daughter, B. I accepted from Ms Sweeney’s evidence that there was an issue regarding rent at the caravan park for the period 21 –24 November 2004, but I am satisfied from the documentary evidence which I have preferred, that she moved there, on 18 November 2004, and not later.
31. In support of her argument that she cared for the children, Ms Sweeney insisted that she owned the children and explained that the children’s needs changed over time as they grew up, so that there was no need to change nappies, and they could make a sandwich for themselves if there was food in the house. She insisted she had contributed financially to her parents’ household, and to the work for the care of the children from 2001 when she moved in with them. Ms Sweeney agreed that her father took the child B to school and picked her up, and took her to activities such as horse riding, but said in her oral evidence that she could not do it because she had had a motor vehicle accident on 23 September 2003, and had no car. Ms Sweeney also signed a Statutory Declaration dated 3 September 2004 (T25) in which she addressed the issue of debts raised against her and emphasised she had been the sole carer for her children, as follows: “I have been the sole carer of my daughter since her birth. I have never given anyone permission to care for my child since her birth. … As I have been the sole carer, I do not owe this money.”
32. I was mindful that the evidence of Mr Sweeney in his Affidavit filed in the Family Court of Australia on 29 November 2004 as to the care of Ms Sweeney’s children is substantially different from that of Ms Sweeney. Mr Sweeney deposed at T54/309 that his daughter had brought the child B to his home in approximately 2001, and had said: “I can’t do this anymore. I can’t look after B. My life’s a mess. I need to sort myself out.” He deposed that Ms Sweeney agreed to his suggestion that B reside with them. He also stated that Ms Sweeney came and went from Toowoomba and would visit her parents, but took little interest in the children, and would stay in the caravan in their backyard for a period of weeks at a time. Mr Sweeney detailed the arrangements for taking the children to TAFE (the child J), and school, (the child B). He discussed their supervision and deposed that he supported them financially with a small contribution from one of the fathers. He expressed concern about his daughter’s mental health and her use of illicit drugs and the effect upon the children.
33. Ms Sweeney said that she disagreed with the content of the Affidavit of her father, in particular in relation to paragraph 48 in which he stated that she had been missing for three to four days every fortnight. She told me that she had gone to Brisbane once only, and that was on 20 July 2004 to see a doctor about “body reconstruction”. She also disputed that her mother could cook for the children because she is disabled.
34. I am mindful that Mr Dube submitted the contents of Mr Sweeney’s affidavit had been accepted by the SSAT, and that it had been unchallenged at the hearing. He urged upon me to accept its contents as a reflection of the facts in this matter.
35. I was mindful that Mr Sweeney’s evidence was preferred over that of Ms Sweeney at the SSAT hearing. The contents of the Affidavit were not challenged by Mr Hodges, and Mr Sweeney was not required for cross examination. Accordingly, where there are substantive differences, I prefer the written evidence of Mr Sweeney, noting also that he has had care of the child B and that she has been his FTB child since 1 July 2004. I noted also at T59, an Interim Order of the Family Court of Australia dated 7 March 2005 which granted joint responsibility for the making of decisions about the long term care, welfare and development of the child B to the maternal grandparents as well as ordering that she reside with them.
36. Ms Sweeney said that she was aware she had to tell Centrelink if her circumstances changed, but insisted nothing had changed, and that this was reflected in her replies to letters from Centrelink asking her about the care of her children e.g. T10. Ms Sweeney insisted in her evidence that she has been the sole carer for her children, and that she always lived in the same house with them except when she was in hospital.
37. I noted that when Mr Dube referred Ms Sweeney to the SSAT’s paragraph 7 of T2(a)/15, which stated that Ms Sweeney reported she had never taken illegal drugs, Ms Sweeney said that perhaps she said that because her schizophrenia had been bothering her at the time.
38. I am mindful that to qualify for PPS Ms Sweeney must have had at least one PP child as defined in the legislation in her care for the relevant period, which for purposes of this matter is 18 November 2004 to 25 January 2005. As I am satisfied from the evidence, that the child B was the PP child of Mr John Sweeney in that period, and as I am satisfied Ms Sweeney moved to the Mehi River Van Park on 18 November 2004, the debt against Ms Sweeney for that period has been correctly raised pursuant to section 1223(1) of the Act. I moved to consider whether special circumstances exist to waive all or part of the debt.
WHETHER SPECIAL CIRCUMSTANCES APPLY TO WAIVE ALL OR PART OF THE DEBT
39. I am mindful that the SSAT found for Ms Sweeney in regard to waiver of the debt of $3,837.72 for the period 18 November 2004 to 25 January 2005 on the basis of special circumstances, which included taking into account her mental health issues, how the PPS debt arose, her financial circumstances, and notional entitlement to another income support payment.
40. If I find that the PPS debt did not result wholly or partly from Ms Sweeney or another person knowingly making a false statement or a false representation, then I can consider whether special circumstances exist pursuant to section 1237AAD to either waive some or part of the debt. As relevant, the section follows:
“- SECT 1237AAD
Waiver in special circumstancesThe Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.”
41. Ms Sweeney acknowledged in her evidence that she received correspondence from Centrelink, and that she knew of her obligations to inform Centrelink of any changes to her circumstances. She said nothing had changed, and she had the care and control of her children throughout the relevant period. Reference was made to the letter of Centrelink of 20 July 2004 (T10), in which she was asked whether her circumstances had changed. Ms Sweeney insisted in her evidence that she has been the sole carer for her children, and that she always lived in the same house with them, and supported the (parents’) household both financially and by looking after the children except when she was in hospital.
42. I find on the basis of the evidence that Ms Sweeney moved into the Mehi River Van Park on or about 18 November 2004 alone and without her daughter. I have noted Mr Hodges’ submission that when Ms Sweeney attended at Centrelink with her daughter to provide a rent receipt on 25 November 2004 in order to obtain rental assistance, and that attendance at Centrelink in itself was a form of notification of change of address. He submitted also that Ms Sweeney’s circumstances in relation to her child had not changed at that time, and she still had the care and control of her daughter.
43. I am not satisfied to find that Ms Sweeney informed Centrelink of a change in her circumstances when she moved to the Mehi River Van Park, and find that she accordingly failed to comply with her obligations under the Act, to inform Centrelink of a change of address. However, I am not satisfied that she did so “knowingly”, because I accept that in her mind, things had not changed. Accordingly, Ms Sweeney satisfies section 1237AAD(1)(a)(i) of the Act. I can therefore proceed to consider whether there are “special circumstances” pursuant to section 1237AAD, (apart from financial hardship), to either waive all or part of the debt.
44. The term "special circumstances" has been examined by Courts and Tribunals in many decisions, and in different contexts. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 Toohey J stated:
“An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend on the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they have a particular quality of unusualness that permits them to be described as special.”
45. Mr Hodges’ submitted that the following factors should amount to special circumstances:
·Julie Sweeney’s precarious mental health, notwithstanding the lack of medical reports – he submitted that the evidence of mental health issues came not only from Ms Sweeney, but also from John Sweeney and from the proprietor of the Mehi Van Park. It was unlikely that anyone without diagnosed conditions would so frequently be admitted to mental health units. Mr Hodges also submitted that Ms Sweeney’s belief that she had never given up her children’s care was related to her state of illness and mind, and that was “part of the package that is my client”.
·Julie Sweeney’s poor financial circumstances, described most effectively by her father in his various statements and affidavit to the court;
·The fact that the whole overpayment was following, if not solely caused by, a Centrelink error;
·The fact that while there may be a ban on the application of a “notional entitlement” test, in this case there was actual entitlement to NSA until Centrelink of its own volition changed the arrangements.
46. I am mindful that the financial circumstances of persons on income support are generally difficult, and that Ms Sweeney is not an exception in that regard.
47. Notwithstanding the lack of medical reports, I accept that Ms Sweeney’s mental health has been a problem resulting in a number of hospitalisations, and that she suffers detriment from the fact that she is non compliant with the taking of medication. I accept that her health is a special circumstance.
48. I am mindful that there have been various errors made by Centrelink in dealing with income support for Ms Sweeney, but have noted that wherever this has occurred, it has been recognised by waiver of various amounts of debt, including, PPS, Carer Allowance and Family Tax Benefit which has been to Ms Sweeney’s benefit. I am not satisfied that error of the Commonwealth is a special circumstance in this case.
49. I then considered the notional entitlement issue as raised by the SSAT and the parties before me. In waiving the debt of $3,837.72, the SSAT concluded it was likely that given Ms Sweeney’s circumstances, she would at that time have been entitled to some other form of income support, and considered the notional entitlement to another form of income support to be a special circumstance.
50. Mr Hodges referred to Ms Sweeney having been on Newstart Allowance in 2004 before Centrelink changed her payments to PPS. He submitted the SSAT had not made its decision regarding the inclusion of notional entitlement as a special circumstance in a vacuum, but rather with reference to the actual circumstances of Ms Sweeney’s situation. He emphasised that there had been confusion because both Ms Sweeney and Mr John Sweeney were interviewed by different social workers whose recommendations did not concur with each other. He argued that in any case, the general scheme of the Act is to provide income support for those who need it. Ms Sweeney, he submitted, is clearly one of those people. He also submitted that in Ms Sweeney’s case (unlike in the matter of Schulze and Secretary Department of Family and Community Services [2004] AATA 705), there was actual and not notional entitlement to an income support payment.
51. Mr Dube submitted that notional entitlement to another pension was not a matter to be taken into account in the application of section 1237AAD. In support of his argument he cited Schulze (supra), and Secretary, Department of Family and Community Services and Varhegyi [2005] AATA 635. He drew my attention to paragraph 37 of the latter case, where Deputy President Forgie had stated “there is no room to introduce a concept of notional entitlement in that of special circumstances in s. 1237AAD(1) of the Act.” Mr Dube also drew to my attention various other cases where the above mentioned principles had been applied, and other AAT cases which had not followed those principles exactly. Mr Dube also submitted that if the SSAT was inferring that Ms Sweeney would have been entitled to Newstart Allowance, it did not consider matters such as whether she would have satisfied the activity test if she had been in receipt of that payment.
52. I have considered the submissions of the parties and the case law in regard to notional entitlement. I have noted in particular what Deputy President held in Schulze, that in light of the set-off provisions applicable to notional entitlements in certain circumstances, pursuant to section 1237AAC of the Act, it would defeat the intention of Parliament to consider notional entitlement as a special circumstance in the application of section 1237AAD of the Act. I respectfully agree with Deputy President Jarvis. I find further that given Ms Sweeney’s circumstances at the relevant time, a notional entitlement to another income support payment, if there was one at all, may have been to either Disability Support Pension (DSP), or to Newstart Allowance. The documents disclose that Ms Sweeney applied for DSP in August 2004, (T19), and that she did not proceed with that application because it entailed her attending for psychological assessment, which she refused.
53. Even if I were able to consider the issue of notional entitlement to another income support payment as a special circumstance which I do not consider I am, I am not satisfied in this case that I have sufficient evidence before me to be satisfied what, if any, payment that would have been.
54. Mr Dube argued that special circumstances did not apply in Ms Sweeney’s case because there were countervailing circumstances that merited against the exercise of the discretion to waive any or all of the debt under section 1237AAD of the Act. He referred in particular to the case of Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553 where the Tribunal took the failure of the citizen to comply with notification obligations, whilst not deliberate, as a factor which weighed against him in the consideration of special circumstances.
55. Considering the totality of the circumstances, I am unable to find that Ms Sweeney’s circumstances can be considered to be special circumstances in terms of section 1237AAD of the Act. They are not so unusual, uncommon or exceptional as to permit me to find that they have a particular quality of unusualness that permits them to be described as special.
56. Accordingly the decision of the SSAT to waive the PPS debt of $3837.72 for the period 18 November 2004 to 25 January 2005 must be set aside and the decision to Secretary to recover the amount reinstated.
57. As noted above, the decision of the SSAT to affirm the debts for FTB and Carer Allowance were not disputed and I affirm those.
DECISION
58. The Tribunal affirms the decision of the SSAT and decisions of the Secretary regarding the debts of FTB and Carer Allowance.
59. The Tribunal affirms the decision of the SSAT and the Secretary to waive $2,444.54 of the PPS debt.
60. The Tribunal sets aside the decision of the SSAT to waive the remaining part of the PPS debt of $3837.72 for the period 18 November 2004 to 25 January 2005, and reinstates the decision of the Secretary to recover that amount.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:..............[sgd].....................
AssociateDate of Hearing 16 March 2007
Date of Decision 24 April 2007
Solicitor for the Applicant Mr S Hodges
Solicitor for the Respondent Mr B Dube, Sparke Helmore Lawyers
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